City of Kennewick v. Futurewise
| Decision Date | 08 March 2022 |
| Docket Number | 37800-4-III |
| Court | Washington Court of Appeals |
| Parties | CITY OF KENNEWICK, Petitioner, v. FUTUREWISE, a Washington nonprofit corporation; BENTON COUNTY, political subdivision of the State of Washington; and GROWTH MANAGEMENT HEARINGS BOARD, an administrative agency of the State of Washington, Respondents. |
UNPUBLISHED OPINION
The City of Kennewick (City) appeals a final decision and order of the Eastern Washington Growth Management Hearings Board (Board). The Board concluded that Benton County's (County's) expansion of the City's urban growth area (UGA) was noncompliant with the Growth Management Act chapter 36.70A RCW (GMA), by failing to comply with RCW 36.70A.110, .115, and .020(2). The Board based its findings and conclusions on the County's failure to "show its work" as to how the UGA expansion corresponded to the Office of Financial Management's (OFM) population growth projections. A majority of the Board rejected the City's argument that the Board's proceedings became moot when the City annexed the area that had been added to its UGA.
We hold that the Board's "show your work" requirement was improperly applied where the petitioner, Futurewise, did not present a prima facie challenge to the results of a City land capacity analysis on which the County relied in adopting the expanded UGA. Because the Board's finding that the County failed to show its work is the sole basis on which it found failures to comply with the GMA, its decision and order ignores the presumption of validity and shifts the burden of proof. We reverse the Board's findings of noncompliance and its remand order for this reason, and need not reach the contested issue of whether the City's annexation rendered proceedings moot.
The City of Kennewick is the largest of five cities located within Benton County. It is located along the southwest bank of the Columbia River, just southeast of the confluence of the Columbia and Yakima rivers and across from the confluence of the Columbia and Snake rivers. Interstate 82, a four-lane divided highway, runs parallel to its southwest border southwest of that lies unincorporated Benton County.
Application for and approval of a UGA expansion
As far back as 2012, the City viewed it as desirable to identify and obtain land use development approval for industrial use land that would enjoy easy access to the Interstate 82 corridor. In 2013 and 2014, the City applied to expand its UGA by 1 263 acres to the south and retract its easternmost UGA by 240 acres. Its request to remove the 240 acres was approved, but its request to expand to the south was ultimately unsuccessful. Futurewise v. Benton County, No. 14-1-0003, 2014 WL 7505300 at *1 (E. Wash. Growth Mgmt. Hr'gs Bd. Oct. 15, 2014).
The County's next UGA application period was set for the fall of 2018, and the City at that point applied to the County to increase the City's UGA by adding 279.53 acres of land adjacent to and southwest of the City. The land was vacant and designated rural remote under the comprehensive plan. The City proposed that the land be designated industrial.
The City's application to expand its UGA gave, as its reason, that "[w]ith the 2037 population projection of 112, 044, it is expected that Kennewick will need an additional 1, 000 acres to accommodate an additional 32, 924 residents," and the City's land capacity analysis indicated there would be shortage of land for parks, public facilities, schools, industrial uses, open space and public service uses within the City's UGA. Clerk's Papers (CP) at 660. The 2037 population projection was material because the GMA requires that a county's UGA is to be "[b]ased upon the growth management population projection made for the county by the [OFM]." RCW 36.70A.110(2).
The City explained its interest in developable industrial land to "provide employment opportunities now and into the future that will diversify its economy," providing the following history:
In 2016 Kennewick commissioned ECONorthwest to complete a regional industrial lands analysis in order to get a better sense of what types of industrial lands exist within the Tri-Cities region. The study found that while "the region has a large amount of vacant or underutilized industrial zoned land . . . there are few large desirable sites ready for development in the region (City of Kennewick Industrial Zoned Land Assessment, 2016, pg. 3). Over the last 2 years the City of Kennewick has received 15 requests for Information from the Washington State Department of Commerce for industrial lands meeting certain criteria. Of those 15, Kennewick was not able to respond to 10 of them. The characteristic that was common to each of those 10 requests was the acreage. Other limiting factors included the lack of appropriately zoned industrial lands near an Interstate and the lack of large parcels zoned for heavy industrial activities.
Among materials submitted in support of the City's UGA expansion application was a 2018 UGA Information Spreadsheet, identified by the City as page 5 of its Updated Land Capacity Summary 2018 (Nov. 14, 2018). This is one of a handful of key documents that the parties and Board members referred to repeatedly in proceedings below, often citing them by the "IR" (index of records) or "Tab" number used to locate documents in the administrative record. To assist the reader in following record references, we include the IR/Tab number citations for these key records.
The 2018 UGA Information Spreadsheet, IR/Tab 179, is set forth below. The "uniform formula" identified in the "Needs" column is provided for by the County's Countywide Planning Policy (CPP) #4. CPP #4 provides that the "[UGA] of each City shall be based upon official and accepted population projections for minimum [sic] of 20 years." CP at 646. The "uniform formula" requires the jurisdictions within the County to take into consideration a total of 11 categories and adjustments (identified as "A" through "K") in arriving at the jurisdiction's land area needs. CP at 647.
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CP at 839 (IR/Tab 179).[1] The "Surplus/Deficit" column on the far right shows a shortage of land for parks, public facilities, schools, industrial uses, open space and public service uses as described in the application's narrative. The deficit identified for industrial uses is 774.5 acres.
The County's planning commission considered the City's UGA expansion application on November 12, 2019. A staff report provided to the planning commissioners before the meeting explained that the proposed UGA expansion addressed a "774.5-acre deficit of lands designated for industrial use within the City's current [UGA]." CP at 639. The report stated that the planning department had "analyzed the [City's] application for consistency with the [GMA], the [County's] Comprehensive Plan, the County-Wide Planning Policies, and other regulations adopted by [the County] as applicable." CP at 640. It recommended approval with suggested findings of fact.
Following a public hearing, the planning commission provided its written recommendation to the board of county commissioners that the UGA expansion be approved. As relevant to the appeal, the planning commission found, "The application submittal complies with the locational and sizing requirements of RCW 36.70A.110." CP at 754. It found that the application responded to a "shortage of land in the City's existing UGA to accommodate future large tract industrial growth" and that the site was suitably separated from any nearby residential areas. CP at 755. Among materials the recommendation identified as having been submitted in support of the application was the City's 20 year (2017-2037) comprehensive plan.
The following "Land Use Inventory" table is included in the City's 2017-2037 comprehensive plan:
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CP at 829 (IR/Tab 171). Like the 2018 UGA Information Sheet, the table's column for the industrial use category identifies the need as 774.5 acres.
The County's board of county commissioners passed Resolution 2019-898 and Ordinance 618, which expanded the City's UGA, in December 2019.
Appeal, annexation, and arguments to the Board
Futurewise, which describes itself as a Washington nonprofit corporation and statewide organization devoted to ensuring compliance with the GMA, timely petitioned for review of County Resolution 2019-898 and Ordinance 618 by the Eastern Washington Growth Management Hearings Board. It alleged that the County's legislative actions failed to comply with a number of provisions of the GMA and several County CPPs.
Before the Board could hear and determine Futurewise's petition for review, the City passed Ordinance 5863, which annexed the 279.53 acres newly added to the UGA. The annexation was not challenged. The City then filed a motion to intervene in Futurewise's appeal, which was granted. It moved to dismiss Futurewise's petition on the basis that annexation of the property caused the Board to lose subject matter jurisdiction and rendered moot the issues raised in Futurewise's petition for review. The Board declined to decide those issues on a limited record and deferred a decision on mootness to the hearing on the merits.
Futurewise was required to file an opening prehearing brief, with the City and County's responses to be filed three weeks thereafter. As relevant to the appeal, Futurewise's prehearing brief argued that the County's expansion of the UGA exceeded the amount of land necessary to accommodate the urban growth projected by OFM because "[as] part of the 2018 update to the comprehensive plan, Benton County added 901 net acres to the UGA shared by Kennewick for...
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